Malcolm Turnbull, upon accepting the Referendum Council final report, claimed in a joint media release that the Referendum Council said the offer was “take it or leave it”

The Referendum Council said the Voice to Parliament was a “take it or leave it” proposal for the Parliament and the Australian people.

I have never seen this claim denied by anyone, but it seems to be confirmed in this sbs article here by Thomas Mayor – one of the main faces pushing the statement. Mark Liebler, Referendum Council Co-Chair also attached this same news article to his own Joint Parliamentary Select submission (no. 8) with a commendation.

The Referendum Council heard us, and they informed Government that the substantive recognition we asked for through a constitutional Voice was a “take it or leave it proposition”.

Thomas Mayor

If the offer really is “take it or leave it”, it puts First Nations people in a very vulnerable position when future problems with the enacted proposal come up. This vulnerability comes from the doctrine of Contra proferentem.

from https://en.wikipedia.org/wiki/Contra_proferentem

Contra proferentem (Latin: “against [the] offeror”), also known as “interpretation against the draftsman”, is a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording.

First Nations people, in this case are the draftsman. Because they claim to be the authors of the proposal, it makes it very difficult for them to later contest any ambiguity in the agreement.

This doctrine means that the drafted offer should be comprehensive, clear and succinct. In my opinion, the Uluru Statement offer is not comprehensive enough to meet the minimum expectations of First Nations peoples. It does not ask for reparations, land rights, the end of child removals, implementation of deaths in custody recommendations, a right to be consulted, any specificity on when the duty to consult should be triggered, any details on the structure of the Voice such as a minimum floor number of seats the Voice should have. Yet, many have expectations that these things will result from the proposal. This lack of detail and ambiguity in expectations will bite us because of contra profentum.

I have already written about another way that will make it hard for First Nations to get out of a rotten deal by claiming they were tricked – and that is if they sleepwalk into agreements while relying on disinformation that is being spread on social media regarding non est factum.

It seems that the Referendum Council have structured things to make it as difficult as possible for First Nations people to go back on this proposal – despite the fact that many legitimately do not understand the consequences of it.

An interesting way this ‘take it or leave it’ offer has been structured, is that the Referendum Council split up some of the details in the proposal outside of the Referendum Council Final Report. As the offer is ‘take it or leave it’, this means that the offer is “it“. Only what is actually in the Referendum Council Final Report and the Uluru Statement will be legally binding.

This is why they call it “co-design” of the Voice – and not “negotiation” of the Voice. The difference is this. Co-design is where Parliament designs the Voice, while taking input from First Nations people. However – it is still 100% the decision of Parliament what the final design is. First Nations do not even rubber stamp the design. They simply inform.

If the offer were instead – not ‘take it or leave it’ – but be an offer to be negotiated, the final design outcome after negotiation of the form of the Voice would be binding. Parliament would not be able to change it without consent of First Nations people.

Making it ‘take it or leave it’ is very foolish when the offer is not comprehensive and detailed.

This trickery is obvious when you see what the Referendum Council did with regards to a Joint Select Committee (JSC) Submission, number 479. (The JSC was the step that happened immediately after the Referendum Council Final Report. )

The authors of this submission are Aboriginal members of the Referendum Council who were responsible for the design and execution of the First Nations Regional Dialogues and the national constitutional convention and the technical advisors who assisted the Indigenous working groups in the First Nations Regional Dialogues and the national constitutional convention. We are solely responsible for the views and content in this submission.

Joint Select Committee submission 479

At first glance, it seems strange that they did not think ahead to include many of the details in this submission in the final report. The details in the submission draw on the dialogues themselves, and regard things such as the design of the Voice, the possible wording for a referendum and wording for Constitutional (big C) amendment. The reason they separated these things from the Final Report is, I believe, because by putting them separate from the offer, they will ultimately not be binding. It is to give people a misleading impression that these details are part of the offer – when they are not.

These details, and anything else not spelt out in the Referendum Council Final report are optional extras – they will not be protected. This includes other subsequent chatter and pipe-dreams of having designated seats in Parliament, having a say in certain laws, or having some control over the structure and design of the Voice. This includes the outcome of the co-design process – and if you understand this, you will see that participating in co-design is a complete and utter waste of time. If you want these things to have permanence- they should have been included in the original take-it-or-leave-it offer. It’s too late to add them now.

Image by Aida KHubaeva from Pixabay

The word “Constitutional” – can mean one of two things.

1. The Commonwealth of Australian Constitution Act 1901 – the document itself. In academic literature this is often called the “Big C” constitution.

2. The word ‘constitution’ also means the composition of something. So the ‘little c’ constitution of Australia means the composition of Australia. Australia is composed of a federation of colonies, including the parts of those colonies; the structural parts such as the executive, judiciary, legislative branches and the Australian people. That is the ‘little c’ constitution of Australia.

Which one of the meanings of “constitutional” applies to the Uluru Statement?

If you look at the Referendum Council report, you will see that the “recognition” is to happen in an extra-constitutional Declaration of Recognition. “Extra-constitutional” – means outside of the constitution (like extra-terrestrial means from outside of earth).

Also in the Referendum Council final report (p11) it explicitly says that the delegates outright reject a “statement of recognition or acknowledgment in the Constitution”.

“Recognition in the constitution” that is outside the Australian Constitution Act, must therefore mean that the Uluru Statement asks to recognise Aboriginal and Torres Strait Islander peoples as belonging in the composition of Australia.

“Constitutional Recognition” possibly does not involve the Commonwealth of Australian Constitution Act at all.

Revisiting Recognition

The word “Recognition” can also mean different things. If we consider that Aboriginal and Torres Strait Islander peoples are possibly not part of the explicit composition of Australia – the context of recognition must be looked at from an international political point of view.

In international politics and law – recognition means something very specific. This is also called “diplomatic recognition” or “State recognition”. This is when a nation State recognises the sovereignty of another State by establishing diplomatic relations with them. The consequences of diplomatic recognition are significant. This video is a good primer on recognition and how it happens.

Australia (or one of it’s many “Crowns”) needs to diplomatically recognise Aboriginal and Torres Strait Islander peoples as being separate to Australia in order to conduct a Treaty with them to legitimise Australia’s own claims over the territory. This presents a problem – because to recognise Aboriginal people as being separate of Australia, is to admit that Australia’s own claim is sketchy.

The colonial solution is – to diplomatically recognise Aboriginal and Torres Islander peoples as being part of the composition of Australia. Or in other words – ‘little c’ constitutional recognition. All up – “constitutional recognition” – is to diplomatically recognise the sovereignty of Aboriginal and Torres Strait Islander peoples as being an integral part of Australian sovereignty.

This is substantive recognition. One of the meanings of substantive is ‘belonging to the substance of a thing’. Contrary to common understanding – constitutional recognition in the context of the Uluru Statement is not to get a mention in the text of the Constitution Act.

I suspect the Voice itself will also be ‘enshrined’ in the composition of Australia and not in the Constitution Act itself. The Referendum Council appear to have carefully structured the proposal to allow this by separating out certain parts of the proposal from the Final Report into their Joint Select Committee submission (No.479), which deceivingly makes these parts look like an integral part of the non-negotiable offer when they are not.

How to bypass this

Instead of politically assimilating into the Australian state – Aboriginal people can establish diplomatic relations with States other than Australia. This means declaring their own statehood like the Sovereign Union advocates (through UDI’s) and start building their own international relations. Building relations can be done gradually – it does not mean that immediate recognition by the entire UN is needed. This process can start as simply as sending a delegation to meet with another countries leadership, there are pacific island nations who I think will be receptive. Having a single foreign state recognise an Aboriginal nation would be a good start and may set off a chain of more recognitions.

This avoids being recognised as being part of Australia and legitimising the ongoing genocide and occupation. This will in turn force the Crown’s hand, and will either lead to the negotiated, internationally-binding sovereign Treaty that Aboriginal people expect (unlike domestic ‘agreement-making’), or could possibly lead to outright Aboriginal independence or to a new basis for rebuilding a modern Australia with the guidance and leadership of the ancient peoples of the land.

Image by anncapictures from Pixabay